Alternative dispute resolution - Northern Ireland

TABLE OF CONTENTS

First of all, from a general perspective, these are the different types of ADR in Northern Ireland?

Ombudsmen

Regulators

Arbitration

Mediation

Neutral Evaluation

Conciliation

Expert Determination

You may in most of the situations have recourse to one or the other of these different types of ADR. To get more information, please select in the list hereafter the situation in which you find yourself:

Conflicts between consumers and businesses

Conflicts between businesses

Conflicts between employees and employers

Family conflicts

Conflicts between individuals

Other specific situations

First of all, from a general perspective, these are the different types of ADR in Northern Ireland?

Ombudsmen

Ombudsmen

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Ombudsman schemes exist to deal with complaints
from ordinary citizens about certain public bodies or private
sector services. The majority of recognised Ombudsman schemes
are set up by statute. Others are voluntary non-statutory
schemes set up on the initiative of the service sectors
concerned.

Regulators

Regulators

{

A Regulator is defined as a body which has been
established by Act of Parliament, but which operates at arm's
length from government and which has one or more of the
following powers: inspection; referral; advice to a third party;
licensing; accreditation; or enforcement.

Arbitration

Arbitration

{

Arbitration is a procedure for resolving
disputes privately, in which both sides agree to be bound by the
decision of an independent third party, known as an arbiter.

Mediation

Mediation

{

Mediation can be used in a broad range of
situations, including commercial, personal injury and clinical
negligence cases. Mediation gives the party or parties in
dispute the opportunity to reach a settlement by negotiation
without a court hearing and with the help of an independent
third party, a mediator, whose role is to help the parties come
to an agreed solution.

Neutral Evaluation

Neutral Evaluation

{

Neutral Evaluation is where a neutral third
party, probably an expert in the type of issues involved,
provides a non-binding assessment of the merits of the case.

Conciliation

Conciliation

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Conciliation is similar to mediation but the
third party (conciliator) takes a more interventionist role.

Expert Determination

Expert Determination

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Expert Determination is where an independent
expert is used to decide the issue.

You may in most of the situations have recourse to one or the other of these different types of ADR. To get more information, please select in the list hereafter the situation in which you find yourself:

Conflicts between consumers and businesses

As already explained in "Alternative Dispute
Resolutions - Community law", the European Commission has published on its
website the
list of a large number of ADR bodies for resolving consumer disputes in all
the Member States. You will find in this list the practical information you need
to decide whether to have recourse to one of these ADR schemes: its structure,
its domain, the kind of procedure it follows, its cost and details.

It may well be that you need to have recourse to an ADR body established in
another Member State. To know precisely which body to go to, you may consult the
web pages of the EEJ-Net or of the
FIN-NET in
case of a conflict concerning financial services.

In Northern Ireland, consumers faced with an unresolved dispute over
goods or services have a range of routes they could choose to pursue. Contacting
the trader or business directly is the way many complaints are resolved before
they become disputes. There are a number of sources of help and advice, most
notably from trading standards departments and Citizens Advice Bureaux. Some
sectors have effective complaints-handling systems handled by a regulator, who
also has an enforcement role, or a sectoral consumer council with no enforcement
role. Many consumer problems are settled directly with the trader or
organisation involved. Often consumers are required to use a trader's complaints
procedure, where one exists, before proceeding to another form of dispute
resolution.

Websites offering information and advice to the consumer range from official
sites such as the Department of Trade and Industry's Consumer Gateway to
independent sites that take an
active role in helping the consumer to achieve redress. A
website developed by the
Department of Trade and Industry, local government, LACORS (the Local
Authorities Coordinating Office on Regulatory Services) and the Trading
Standards Institute, allows a consumer to register a complaint with their local
trading standards department.

Conflicts between businesses

Parties who decide to use ADR to settle their dispute can select a method and
a provider of their own choosing, depending on the source of the dispute. While
ADR is not usually compulsory, clauses providing for ADR in contracts are
binding as long as they are specific.

Before using ADR

It is not obligatory to seek legal advice when using alternative dispute
resolution, but it is advisable. It is also advisable to ensure that any ADR
provider used has accreditation and carries indemnity insurance. Any particular
terms you require, such as confidentiality clauses, should be agreed between the
parties and the ADR provider at the outset before undertaking ADR.

Funding

The services provided by Ombudsman Schemes and Regulators are funded either
by the state or by the service sector concerned. Trade Arbitration Schemes are
partially funded by membership fees of the businesses concerned and a fee from
the users of the scheme. Otherwise the actual resolution process is paid for by
the parties in dispute, either shared equally between them or on any other basis
which they choose to agree. For procedures where ADR could be regarded as part
of court proceedings - e.g. mediation, ADR can be funded by the Legal Aid
Department of the Law Society of Northern Ireland if the party is eligible for
civil legal aid. However, ADR processes which take place entirely independently
of judicial proceedings are not funded.

Interaction with the Courts

Forms of ADR, such as mediation do not preclude the same issues from being
resolved in court, unless a contractual agreement is subsequently signed. If the
dispute is already in the court process, the court can suspend the court process
to allow time to resolve the dispute through ADR.

Types of Resolution

The resolution achieved through ADR can take the form of a decision or
agreement by the parties, depending on the form of ADR used. Generally, methods
such as mediation, conciliation and neutral evaluation are designed as aids to
agreement. Expert determination, adjudication and arbitration schemes produce
decisions though these may or may not be binding according to the circumstances
and methods used. Some Ombudsmen make binding decisions, others make
recommendations.

Arbitration is a binding process and parties who opt for it cannot
subsequently go to court, except on very limited appeal grounds. For most ADR
settlements (other than an arbitrator's decision) the parties retain the right
to go to court if the other side fails to implement the agreed settlement. If
the settlement is drawn up as a contractual agreement, the remedy would be to
sue for breach of contract. Parties who reach a mediated agreement would not
normally be able to rerun the same issues before a court. The way a decision can
be enforced will vary according to the ADR method. Ombudsman Schemes have
various methods of enforcing settlements. Some Ombudsman Schemes can enforce
their decisions, most have some method of applying sanctions to organisations
failing to comply with a decision.

In other ADR methods it is open to parties to have any agreed settlement
drawn up as a legally binding contract. There are no statutory rights of appeal
against ADR procedures that are designed to facilitate agreement. Some Ombudsman
Schemes are open to judicial review.

Conflicts between employees and employers

The vast majority of workplaces have formal grievance procedures, most of
which cover all employees and employers. The
ACAS (Advisory, Conciliation and Arbitration Service) Code of Practice in
Disciplinary and Grievance Procedures provides for best practice in the area of
employer/employee disputes. ACAS provides an independent and impartial service
to prevent and resolve disputes between employers and employees. ACAS
conciliators have a statutory duty to promote settlements in a wide range of
employment rights complaints which have been made, or could be made to an
employment tribunal.

Compromise agreements between an individual and their employer are another
means of discharging legally a claim or potential claim. These can offer a fast
and confidential route to settlement, but they are limited to a particular
claim. Unlike ACAS-conciliated settlements, they cannot provide general, final
settlement of all employment claims.

As well as promoting conciliation, the
Government has recently established a new arbitration scheme through ACAS.
The scheme is a voluntary alternative to employment tribunals for unfair
dismissal claims. Resolution of disputes under the scheme is confidential,
informal and quick. Disputes are determined by arbitrators appointed by ACAS. In
line with commercial arbitration, the outcome is final with very limited
opportunities to appeal. Any award is confidential.

Family conflicts

In Northern Ireland, participation in family mediation is voluntary and is
undertaken to resolve disputes arising in the context of divorce or separation
under the provisions of domestic legislation. The Government believes family
mediation will only be successful if parties are free to choose whether or not
to participate. The Government encourages the use of family mediation in
appropriate cases. Not all cases can be resolved through family mediation.
Family mediation is most often used to resolve disputes about matters relating
to children and is less used for other matters. Providers of family mediation
are often independent voluntary organisations. Family mediators are an
independent self-regulated profession.

A pilot, court mandated, mediation scheme is currently in operation in two
Family Care Centres (Belfast and Ballymena) and which is due for external
evaluation in November 2004.

Conflicts between individuals

Parties who decide to use ADR to settle their dispute can select a method and
a provider of their own choosing, depending on the source of the dispute. While
ADR is not usually compulsory, clauses providing for ADR in contracts are
binding as long as they are specific.

Before using ADR

It is not obligatory to seek legal advice when using alternative dispute
resolution, but it is advisable. It is also advisable to ensure that any ADR
provider used has accreditation and carries indemnity insurance. Any particular
terms you require, such as confidentiality clauses, should be agreed between the
parties and the ADR provider at the outset before undertaking ADR.

Funding

The resolution process is paid for by the parties in dispute, either shared
equally between them or on any other basis which they choose to agree. For
procedures where ADR could be regarded as part of court proceedings - e.g.,
mediation, ADR can be funded by the Legal Aid Department of the Law Society of
Northern Ireland if the party is eligible for civil legal aid. However, ADR
processes which take place entirely independently of judicial proceedings are
not funded.

Interaction with the Courts

Forms of ADR, such as mediation do not preclude the same issues from being
resolved in court, unless a contractual agreement is subsequently signed. If the
dispute is already in the court process, the court can suspend the court process
to allow time to resolve the dispute through ADR.

Types of Resolution

The resolution achieved through ADR can take the form of a decision or
agreement by the parties, depending on the form of ADR used. Generally, methods
such as mediation, conciliation and neutral evaluation are designed as aids to
agreement. Expert determination and adjudication produce decisions though these
may or may not be binding according to the circumstances and methods used.

For most ADR settlements the parties retain the right to go to court if the
other side fails to implement the agreed settlement. If the settlement is drawn
up as a contractual agreement, the remedy would be to sue for breach of
contract. Parties who reach a mediated agreement would not normally be able to
rerun the same issues before a court. The way a decision can be enforced will
vary according to the ADR method. It is open to parties to have any agreed
settlement drawn up as a legally binding contract. There are no statutory rights
of appeal against ADR procedures that are designed to facilitate agreement.